Federal judge who sent staffers to defendant businesses is removed from case

A federal appeals court has removed a federal judge from a disability-access case because he sent staffers to visit the defendant businesses.

The New York-based 2nd U.S. Circuit Court of Appeals vacated the judge’s denial of attorney fees and remanded the fee issue with instructions that the case be assigned to a different judge. The New York Times notes the summary order (PDF) issued on Tuesday.

U.S. District Judge Sterling Johnson Jr. had used the visits to determine that eight businesses sued by one plaintiff had never repaired most of the alleged structural problems that prevented access by disabled people. Johnson took judicial notice of the findings, saying it appeared the plaintiff’s lawyers never sought to remedy the failings, and denied attorney fees to the lawyers, Adam Shore and Ben-Zion Bradley Weitz.

Johnson had called the lawyers’ conduct “mendacious” and questioned whether they spent 35 hours preparing the case as claimed. “It is clear that the ‘drafting’ refers to counsel’s efforts in cutting and pasting old defendants in place of new defendants,” Johnson wrote.

The 2nd Circuit said Johnson erred because judicial notice should only be used when the facts are not in dispute. “While we do not question the well-respected judge’s impartiality—or even his conclusions—we remand” because of the reasonable expectation that the judge would have substantial difficulty putting the findings out of his mind, the court said, quoting from a 2007 opinion.

The Times spoke with Johnson after the appeals court issued its opinion. “They have their job to do and I have my job to do,” Johnson said of the appeals court. “They felt it was wrong. Maybe it was, maybe it wasn’t.”

But “the bottom line” he said, is that Shore and Weitz are no longer filing disability cases.